Jilted ex-lover liable to pay compensation for breach of confidence

By 9 February, 2015 January 21st, 2019 No Comments

A recent WA Supreme Court decision has confirmed the extension of equitable compensation for breach of confidence to include non-economic loss.

The Facts

Ms Wilson and Mr Ferguson met on a mine site in the north of WA, where they both worked FIFO jobs. They began a relationship, which over time involved sending explicit pictures and videos to each other. Ms Wilson broke off the relationship, and in an attempt at retribution, Mr Ferguson posted 16 of these photos and 2 videos on his Facebook page. It was seen by numerous mutual colleagues and friends of Ms Wilson and Mr Ferguson.

Ms Wilson sought an injunction against future postings and equitable compensation for breach of confidence.

The Decision

The Supreme Court of WA awarded Ms Wilson $35,000 in equitable compensation for the emotional damage she sustained as a result of the dissemination of the images, which was aggravated by Mr Ferguson’s malicious motive. This amount was found to be proportionate to amounts commonly awarded for pain, suffering and loss of amenity in tortious injury cases, and took into account Ms Wilson’s level of psychiatric injury.

The Court also granted Ms Wilson $13,404 for lost wages, the costs of the action, and a permanent injunction prohibiting Mr Ferguson from further publication of images and videos.

Reasons for the Decision

Ms Wilson’s case was based upon the equitable obligation of confidence, and Mr Ferguson breaching this obligation.

The elements of a breach of confidence are:

  1. There being information of a confidential nature;
  2. The information being communicated or obtained in circumstances importing an obligation of confidence; and
  3. There being unauthorised use of that information.

The categories of information that fall within “confidential information” are very broad – it can include images (Prince Albert v Strange) and can be considered “private” where it includes information or conduct that would be highly offensive to a reasonable person of ordinary sensibilities (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd), but also includes “all information that is subject to an obligation of confidentiality” (Corrs Pavey Whiting & Byrnes v Collector of Customs).

These images and videos had been shared in circumstances importing an obligation of confidence. Mr Ferguson published them with the intention of causing mental harm and emotional distress to Ms Wilson, and could not have satisfied this motive had the images and videos not been of such a personal and confidential nature, or had he had Ms Wilson’s authority to publish them. Mr Ferguson owed a duty of confidence to Ms Wilson, which he breached.

The remedy of injunction was non-contentious, as Mr Ferguson’s behaviour indicated a risk of further publication and the dissemination had not been so large that an injunction would be useless.

The remedy of equitable compensation was more closely discussed as Australian courts, until recently, had not awarded equitable compensation for non-economic loss and the common law approach is that compensation can only be awarded in very limited circumstances for non-psychiatric injuries.

Giller v Procopets, a Victorian Supreme Court of Appeal case, reconciled the “cardinal principle of equity that the remedy must be fashioned to fit the nature of the case and particular facts” with the nature of modern electronic communication (Giller). The Court in Giller extended the relief of monetary compensation to embarrassment and distress resulting from the disclosure of information such as private or personal images. In the current case the Court took positive incremental steps to keep the law of equitable compensation up to speed with the technological advances which have dramatically increased the ease and speed of disseminating information.

What this means for the future of the law of equitable compensation and breach of confidence

Information classified as confidential (due to its nature or method of obtainment) such as “trade secrets” which are shared or disseminated without authority can give rise to monetary compensation, even where the losses are not financially quantifiable. The boundaries to compensate for non-economic loss in these sorts of cases remain unclear, but it is a positive step forward in an era where information can be shared widely and instantaneously at the click of a button, causing irreversible damage.

The Australian Law Reform Commission has also recommended the introduction of legislation creating a statutory cause of action for serious invasion of privacy.

You can read the full decision by clicking here.


Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; Corrs Pavey Whiting & Byrnes v Collector of Customs (Vic) (1987) 14 FCR 434; Giller v Procopets [2008] VSCA 236; Prince Albert v Strange (1849) 41 ER 1171; andWilson v Ferguson [2015] ASC 15.

Liability limited by a scheme approved under Professional Standards Legislation. The information contained in this article is general in nature and is intended to be introductory only – you should not rely on it in place of legal advice. If you require advice please contact us.